by Richard Wolf, USA TODAY

by Richard Wolf, USA TODAY

WASHINGTON - Still wrestling with the weightiest decisions of its current session, the Supreme Court accepted Monday what could be the most important case of its next one: a colossal power struggle between the White House and Congress over government appointments.

President Obama and Senate Republicans set the stage for the showdown during the past 2½ years as they fought over Obama's proposed nominations to a little-known federal agency, the National Labor Relations Board. That battle is a microcosm of the broader war over the nomination and confirmation process - one that dates back over several presidencies.

The story line is simple: Obama's nominees were blocked by Republicans, just as many of President George W. Bush's choices were blocked by Democrats. So in January 2012 - with the Senate meeting every three days in pro-forma sessions but not conducting any business - Obama used the Constitution's "recess appointments" clause to install them without Senate approval.

Or so he thought. He was taken to court - and thus far, he's losing. But the battle isn't over until the Supreme Court sings.

On the surface, National Labor Relations Board v. Noel Canning is a labor dispute over the Yakima, Wash., Pepsi bottler's dealings with its Teamsters union. The company challenged the board's pro-union ruling in a collective bargaining dispute on the grounds that Obama's nominees were not legally appointed.

On a broader level, however, it's a power struggle between the executive and legislative branches of government. That it will take the judicial branch to solve it hearkens back 210 years to Marbury v. Madison, when the Supreme Court first declared itself the ultimate arbiter of such disputes.

Despite the gravity of the dispute, lower-court rulings and the briefs filed at the Supreme Court make it seem at times like a debate over linguistics. The ultimate ruling, in fact, could hinge on how the justices interpret two words: "the" and "happen."

The recess appointments clause of the Constitution reads: "The president shall have power to fill up all vacancies that may happen during the recess of the Senate, by granting commissions which shall expire at the end of their next session."

For decades, presidents have made such appointments when lawmakers are on extended breaks. But the D.C. Circuit Court of Appeals determined that "the recess" meant the singular break between annual sessions of Congress.

And for nearly 200 years, presidents have used that power to fill any existing vacancies. But the court ruled that "may happen" meant only positions that fall vacant during the same recess.

"It turns out that 'happen' can happen to have more than one obvious meaning," says Trevor Morrison, dean of New York University Law School and an expert on constitutional law and the executive branch.

Peter Shane, a law professor at Ohio State University who specializes in the separation of powers, says the D.C. Circuit judges engaged in "semantic cherry-picking." While the Supreme Court may not be so rigid, he says, under Justice Antonin Scalia's influence it has been "unduly fetishist about these precise dictionary meanings."

But Tuan Samahon, another separation of powers expert who teaches law at Villanova University, says the D.C. court judges' decision isn't radical when judged against the Constitution.

"They've offered some fairly persuasive textual and structural reasons why that is the best interpretation," he says.

CONSTITUTION VS. PRECEDENT

Presidents have used the recess appointments power to name hundreds of people in the past - including Cabinet secretaries and judges, a United Nations representative, CIA director and Federal Reserve chairman. Ronald Reagan was the champion on the practice, with at least 232 such appointments, according to the Congressional Research Service. George W. Bush had about 171.

In its decision, the three-judge panel of the D.C. Circuit noted that no president had tried to make a recess appointment for 80 years after the Constitution was ratified, and until 1947 only three were made during annual congressional sessions.

Obama has made 32 such appointments. "He is like the least recess-appointing president of the 20th century," Shane says.

Under the D.C. Circuit's reasoning, more than 300 recess appointments made during congressional sessions in the past could have been invalidated. In this case, though, only the labor board and perhaps Obama's selection to head the Consumer Finance Protection Board, Richard Cordray, are directly threatened.

The three-judge panel said that if a president could decide when the Senate is in recess, he would have "free rein to appoint his desired nominees at any time he pleases, whether that time be a weekend, lunch, or even when the Senate is in session and he is merely displeased with its inaction."

And in a separate defeat for the administration, the 3rd Circuit Court of Appeals ruled in May that if Obama truly had such power, "then the president could circumvent the Senate's constitutional role simply by waiting until senators go home for the evening."

Solicitor General Donald Verrilli, in his brief requesting that the Supreme Court take the case, said the D.C. Circuit ruling would render unconstitutional hundreds of recess appointments made since World War II.

For that reason, Morrison says, "it would well be an occasion for the court to address what weight should it give to decades and decades of practice between the executive branch and the legislative branch."

POLITICAL RAMIFICATIONS

Noel Canning, as well as Senate Republicans, won their request to have the justices consider the much narrower issue that prompted the Obama-GOP showdown: whether the president can make recess appointments when the Senate is gaveling itself in every three days for pro-forma sessions.

To represent them in the case, the Republicans hired Miguel Estrada, whose nomination by Bush to the D.C. Circuit appeals court was scuttled by Democrats in 2003 after a 28-month standoff.

That episode hardened the battle lines on both sides, and for the past 10 years, Bush and Obama have had a hard time getting their most controversial nominees through the Senate. As a result, the court fight will have political as well as legal ramifications.

Unlike many cases in which the Supreme Court splits along predictable ideological lines, this one offers no such road map.

Most of the justices nominated by Republican presidents, such as Scalia, are strong defenders of executive power, so they could wind up on Obama's side. Justice Stephen Breyer, a Clinton nominee, spent his early career working in the Senate, so he could tilt the other way.

Still, experts on both sides are willing to take their chances in search of a bright line that can guide future presidents and Congresses.

Says Samahon: "It is better to have bad fixed rules than no fixed rules."